John Anderson v. Patrick Donahoe ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3784
JOHN D. A NDERSON,
Plaintiff-Appellant,
v.
P ATRICK R. D ONAHOE, Postmaster General
of the United States Postal Service,
Great Lakes Operations,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 2525—Matthew F. Kennelly, Judge.
A RGUED S EPTEMBER 18, 2012—D ECIDED O CTOBER 26, 2012
Before F LAUM, SYKES, and T INDER, Circuit Judges.
F LAUM, Circuit Judge. John D. Anderson, a United States
Postal Service (“USPS”) worker, suffers from asthma.
While he is virtually symptom-free outside of the work-
place, his asthma regularly flared up at his job as a part-
time mail processor at a postal facility in Bedford Park,
Illinois. Between 2002 and 2009, Anderson filed numerous
2 No. 11-3784
Equal Employment Opportunity (“EEO”) complaints,
an Occupational Health and Safety Administration
(“OSHA”) complaint, and union grievances relating to
his condition, requesting reasonable accommodations.
He was absent from work for extended periods of time
throughout the 2002-2009 period. Anderson sued his
employer, USPS, for alleged violations of the Rehabilita-
tion Act and the Americans with Disability Act (“ADA”)
for retaliation, disability discrimination, failure to ac-
commodate, and violations of the Family Medical Leave
Act (“FMLA”). The district court granted summary
judgment in the defendant’s favor. For the following
reasons, we affirm on all counts.
I. Background
Anderson was hired as a part-time mail processor
by USPS in 1998 and has worked at a facility in Bedford
Park, Illinois for the duration of his career. Anderson
was diagnosed with Chronic Persistent Bronchial
Asthma in 1997. In April 2002, Anderson filed an
informal EEO complaint alleging that his requests for
time off under the FMLA were denied in retaliation for
his having participated in a previous discrimination
complaint and on account of his gender and disability.
In July 2002, Anderson filed another EEO complaint
alleging that his supervisor had retaliated against him
for talking to another manager, harassed him, and that
he had been discriminated against because of his disability.
Anderson asserts that his asthma symptoms were
only noticeable at work, attributing this to his workplace
No. 11-3784 3
being damp, and full of mold and mildew. In Septem-
ber 2002, Anderson filed a complaint with OSHA alleging
that the amount of mold and mildew at the Bedford
Park postal facility was causing him to become ill.
OSHA informed USPS of the issue (without revealing
that Anderson had filed the complaint) and directed
USPS to investigate. USPS hired a contractor to inspect
and test the facility, then approved a $32,000 renova-
tion to remove the mold and prevent its return.
On December 3, 2002, Anderson left work early, claiming
that the mold removal process was causing his asthma
to flare up. On December 23, 2002, Dr. Michael Foggs,
Anderson’s allergy immunologist, wrote a letter to the
USPS injury compensation department explaining that
Anderson is sensitive to mold and should not work in
an environment where he is exposed to mold, dampness,
or noxious chemicals. In a separate document, Dr. Foggs
wrote that Anderson could return to work when the
cleanup process and renovations were completed.
On January 6, 2003, USPS informed Dr. Foggs that
the mold and mildew cleanup had been completed.
Dr. Foggs responded that Anderson could return to the
workplace if the environment was clean and devoid
of mold spores and irritants. USPS told Anderson to
report to work immediately. Shortly thereafter, Anderson
returned to work. On January 17, 2003, Dr. Foggs wrote
another letter stating that Anderson continued to
suffer from asthma-related problems at work and that
he showed virtually no symptoms at home or in the
security office at the workplace. He requested that Ander-
4 No. 11-3784
son be assigned to work in the security office or a com-
parable work environment. That same day, Anderson
contacted an EEO counselor to complain of disability
discrimination. On January 30, 2003, Anderson filed an
informal complaint stating that he was suffering from
disability discrimination, had not been accorded his
FMLA rights, and had received a removal notice stating
that he would be terminated for failing to maintain
a regular work schedule. USPS and Anderson settled
the complaint in March and Anderson kept his job.
In April 2003 Anderson filed another informal EEO
complaint, followed by a formal complaint in June 2003.
In both complaints he sought to enforce his FMLA rights.
In his informal complaint, he also alleged disability dis-
crimination and retaliation. Throughout 2002 and 2003,
Anderson often did not report to work, though the
parties dispute how many of these absences were the
result of his asthma. In addition to the aforementioned
removal notice that Anderson received in January, he
received three notices of suspension due to absenteeism
in 2003.
In December 2003, Dr. Foggs again wrote to USPS
declaring that Anderson had an allergic hypersensitivity
to mold spores and asking that Anderson be extricated
from any workplace environment that exposed him
to mold spores, dampness, or noxious irritants. Anderson
contends that he left work to go to the hospital in De-
cember 2003 and January 2004; USPS disputes
the December visit because the hospital produced no
records of it in response to a subpoena.
No. 11-3784 5
On July 6, 2004, Anderson received another removal
notice. It stated that he would be terminated because he
had not reported to work since June 19, 2004. On July 20,
2004, Anderson made an informal EEO complaint
alleging that his removal notice was the result of race
and disability discrimination and retaliation. On July 21,
2004, USPS received a letter from Dr. Foggs explaining
that Anderson had not been able to work since June 18
and that he had suffered multiple life-threatening
asthma attacks at work. On July 23, 2004, USPS rescinded
and expunged the removal notice from Anderson’s dis-
ciplinary record. Anderson then made a formal EEO
complaint on September 27, 2004, in which he alleged
disability, sex, and race discrimination and retaliation.
Dr. Foggs again wrote to USPS in December 2004 (ap-
proximately six months after Anderson had stopped
reporting to work), declaring that Anderson’s work
environment had repeatedly triggered his asthma
attacks. He explained that Anderson’s asthma was
usually stable outside of his workplace. Dr. Foggs also
stated that he had definitively established a causal re-
lationship between the aggravation of Anderson’s asthma
and his exposure to triggering agents at his workplace.
In May 2005, nearly a year after Anderson stopped
reporting to work, Anderson asked for accommodations
from USPS, requesting to work in the security office or
another environment that his asthma tolerated well. The
same day, Dr. Foggs again contacted USPS regarding
Anderson’s health problems, asserting that his life
could be at risk if he returned to work. In August 2005,
Anderson wrote a letter to Bedford Park facility senior
6 No. 11-3784
manager Michael Lee requesting that he be granted an
accommodation and assigned to clerical or office work.
Later in August, USPS physician Dr. Elaine Fergesun,
a member of the reasonable accommodations committee
to which Anderson’s request had been referred, informed
Dr. Foggs that the mold had been removed and that
the facility’s air quality was higher than the air outside
of the facility. She also requested a description of why
Anderson’s asthma was life-threatening. Dr. Foggs re-
sponded that his records indicated that Anderson had
suffered several asthma attacks at work and expressed
doubt that the quality of the air in the building was
high. He did not provide any records.
In September 2005, Anderson received another notice
of removal. It stated that Anderson had not returned
to work since June 2004 and that USPS found his medi-
cal documentation inadequate. Anderson filed a union
grievance, which the parties settled by agreeing that
Anderson would be examined by a new physician in
November 2005. Dr. Jacek Pieta examined Anderson
and determined that Anderson could return to work in
an irritant-free environment. Anderson returned to work
in February 2006.
When Anderson returned to work, he was placed in
the manual letters section, an area that he had allegedly
told his supervisors his asthma tolerated better. Lee
testified that he observed Anderson working produc-
tively there, wearing a dust mask. Anderson disputes
this. Anderson received no further information in re-
sponse to his request for an accommodation.
No. 11-3784 7
Lee also testified that he checked to see whether Ander-
son could be assigned to an office job, but learned that
there were no vacant funded office positions at that
time (another point which Anderson disputes). Lee and
another manager discussed Anderson’s request during
a telephone conversation with the head of USPS’s rea-
sonable accommodation committee, Stephen Grieser.
Grieser testified that during the call, he consulted
Dr. Fergesun, another member of the committee. They
decided to provide an N95 mask to Anderson. Lee fol-
lowed up with Grieser two to three weeks later,
reporting that Anderson was showing up for work
wearing the mask and was not having any problems.
Grieser did not convene the full committee to consider
Anderson’s accommodation request. Anderson disputes
that he ever received a mask.
From 2006 until the commencement of this lawsuit on
April 27, 2009, Anderson was absent from work on many
days (the parties dispute how many absences were a
result of his asthma). He received several additional
removal and suspension notices. Anderson claims that
his pay was docked during this period; USPS contends
that he was paid for every day that he actually worked.
In August 2007, Anderson was promoted to a full-
time employee, and he currently works as a mail pro-
cessing clerk for USPS. In February 2009, USPS
issued its final agency decision in Anderson’s EEO
case, denying his discrimination complaint.
On April 27, 2009, Anderson filed a pro se complaint
against his employer, USPS, in the Northern District of
8 No. 11-3784
Illinois. In his initial complaint, he asserted unlawful
discrimination based on race, sex, age, and disability, as
well as harassment, retaliation, and failure to accom-
modate a disability. On September 29, 2010, Anderson
(then represented by counsel) filed his first amended
complaint, alleging one count of unlawful retaliation
discrimination under the ADA and one count of negli-
gence. On October 6, 2010, Anderson filed a second
amended complaint alleging a single count of unlawful
retaliation discrimination for failure to accommodate
a disability under the Rehabilitation Act.
Following discovery, USPS moved for summary judg-
ment, addressing the single claim of retaliation discrim-
ination. In Anderson’s response to USPS’s motion for
summary judgment, for the first time he asserted claims
that USPS had interfered with the exercise of his FMLA
rights and had retaliated against him for the attempted
exercise of his FMLA rights. Anderson further argued
that he had a right to amend his complaint to conform
to the facts of discovery, though he did not file a
motion asking for leave to amend his complaint.
The district court granted USPS’s motion for sum-
mary judgment. The court determined that there was no
evidence from which a reasonable jury could conclude
that USPS failed to accommodate his asthma in retalia-
tion for his previous EEO and OSHA complaints and
grievances. Further, while Anderson had established
that he had engaged in protected activity and did not
receive the specific accommodation that he requested,
he was unable to establish the required causal relation-
ship between these two events.
No. 11-3784 9
The district court next determined that Anderson had
forfeited his disability discrimination claim under the
Rehabilitation Act, his failure to accommodate claim,
and his claims under the FMLA. The district court ex-
plained that even if Anderson hadn’t forfeited these
claims, each would fail on the merits. Accordingly, the
court granted USPS’s motion for summary judgment.
Anderson filed a timely appeal.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Jackson v. County of Racine, 474 F.3d 493,
498 (7th Cir. 2007). Summary judgment is appropriate
if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). Facts are
viewed in the light most favorable to the nonmovants,
drawing all reasonable inferences in their favor. Ault
v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
A. Retaliation Discrimination
Anderson first argues that USPS retaliated against him
for engaging in protected activity, in violation of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Specifi-
cally, Anderson claims that USPS retaliated against him
by failing to provide him with an accommodation and
by threatening him with disciplinary action in response
10 No. 11-3784
to his having filed EEO complaints.1 To establish retalia-
tion under the Rehabilitation Act, an employee “must
present either direct evidence of discrimination or
indirect evidence under the burden-shifting analysis
prescribed by McDonnell Douglas.” Mannie v. Potter, 394
F.3d 977, 983 (7th Cir. 2005) (citing Kersting v. Wal-Mart
Stores, Inc., 250 F.3d 1109, 1117 (7th Cir. 2001)). Under
the direct method of proof, a plaintiff must present evi-
dence of “(1) a statutorily protected activity; (2) a materi-
ally adverse action taken by the employer; and (3) a causal
connection between the two.” Caskey v. Colgate-Palmolive
Co., 535 F.3d 585, 593 (7th Cir. 2008) (citing Humphries
v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir. 2007)).
Anderson’s EEO filings constitute statutorily protected
activity, satisfying prong one of his retaliation claim.
See, e.g., Coleman v. Donahoe, 667 F.3d 835, 859-60 (7th Cir.
2012) (“[F]iling EEO charges . . . qualif[ies] as protected
activity.”). With respect to materially adverse action
under prong two, Anderson may have presented
sufficient evidence to demonstrate a genuine issue of
material fact regarding USPS’s alleged failure to accom-
modate him and threatened disciplinary action. While
USPS argues that it accommodated Anderson by en-
gaging in a costly cleanup process, this action can also
1
In his brief on appeal, Anderson also argues that his OSHA
filings constitute protected activity. However, Anderson’s
second amended complaint alleged only that USPS retaliated
against him in response to his having filed EEO complaints
(rather than an OSHA complaint). We accordingly focus
our analysis on Anderson’s EEO complaints.
No. 11-3784 11
be interpreted as responsive to OSHA’s request that
USPS investigate the conditions at the Bedford Park
facility, rather than to Anderson’s accommodation re-
quest. USPS further argues that it accommodated Ander-
son by transferring him to the manual letters department
and providing him with an N95 mask. However, Anderson
disputes that his asthma tolerated the manual letters
department environment better or that he ever received
an N95 mask. Anderson also presented evidence that
he received numerous suspension and removal notices
from USPS. We have previously recognized that
alleging a five-day disciplinary suspension resulting in
diminished job prospects and loss of pay is sufficient to
survive a summary judgment motion on the issue of
adverse employment action. Russell v. Bd. of Trs. of Univ.
of Ill. at Chicago, 243 F.3d 336, 341 (7th Cir. 2001). Thus,
Anderson may have presented sufficient evidence to
withstand a summary judgment motion on the issue of
materially adverse employment action. However, even
assuming that Anderson can establish that USPS took
adverse action against him, he has failed to raise a
genuine dispute as to causation between said
action and his protected activity.
Under the direct method of proof, evidence of a
causal relationship between an employee’s protected
activity and an adverse action may be direct or circum-
stantial. Harper v. C.R. England, Inc., 687 F.3d 297, 306
(7th Cir. 2012). “Evidence of retaliation is direct when,
‘if believed by the trier of fact, [it] will prove the
particular fact in question without reliance on inference
or presumption.’ ” Id. at 307 (quoting Pitasi v. Gartner Grp.,
12 No. 11-3784
184 F.3d 709, 714 (7th Cir. 1999)). Because direct evidence
“essentially requires an admission by the employer,” such
evidence is rare. Id. (quoting Benders v. Bellows & Bellows,
515 F.3d 757, 764 (7th Cir. 2008)); see also Coleman, 667
F.3d at 860 (causation may be shown by “direct evidence,
which would ‘entail something akin to an admission by
the employer‘ (’I’m firing you because you had the
nerve to accuse me of sex discrimination!’)” (citation
omitted)). Anderson has not proffered any evidence
of such an admission by USPS.
More often, as is the case here, employees rely upon
circumstantial evidence to support their claims, which
“ ‘allows the trier of fact to infer intentional discrimina-
tion by the decision maker,’ typically through a longer
chain of inferences.” Caskey, 535 F.3d at 593 (citation
omitted and emphasis in original). An employee may
demonstrate such a chain of inferences through a “con-
vincing mosaic of circumstantial evidence” that would
permit a jury to infer unlawful retaliation on the part of
his employer. Harper, 687 F.3d at 307 (citation omitted).
Under the “convincing mosaic” analysis, we have recog-
nized three types of circumstantial evidence available
to plaintiffs: (1) suspicious timing, ambiguous state-
ments (oral or written) and other “bits and pieces” from
which an inference of retaliatory intent might be drawn;
(2) evidence that similarly situated employees were
treated differently; and (3) evidence that the employer
offered a pretextual reason for an adverse employment
action. Coleman, 667 F.3d at 860 (citations omitted). In
his attempt to construct such a mosaic, Anderson
suggests only that he has already offered evidence of
No. 11-3784 13
suspicious timing and pretext. Such a conclusory allega-
tion is insufficient to raise an issue of material fact.
Indeed, there is no circumstantial evidence in this
case which would permit a jury to infer USPS en-
gaged in retaliation in the present case. With respect to
“suspicious timing,” we have explained that “[c]lose
temporal proximity provides evidence of causation and
may permit a plaintiff to survive summary judgment
provided that there is other evidence that supports the
inference of a causal link.” Scaife v. Cook Cnty., 446 F.3d
735, 742 (7th Cir. 2006) (citation omitted). In Coleman,
for example, we found evidence of causation sufficient
to withstand summary judgment where adverse actions
against an employee commenced one month after she
had filed complaints of race and sex discrimination,
where the employee had also presented evidence of pre-
text. 667 F.3d at 861. By contrast in Amrhein v. Health Care
Serv. Corp., 546 F.3d 854 (7th Cir. 2008), we determined that
a three-month period between an adverse action and
protected activity, on its own, was not enough to create
a jury issue on the inference of retaliation. Id. at 859.
In the present case, Anderson cannot point to
temporal proximity between protected activity and
adverse action on the part of USPS. As the district court
recognized, interpreting the evidence in the light most
favorable to Anderson might permit an inference that
Anderson’s request for reasonable accommodation was
denied (constituting alleged adverse action) when Lee
spoke with Greiser in August 2005 and when they
failed to convene the full reasonable accommodation
14 No. 11-3784
committee. However, his most recent protected activity,
an EEO filing in July 2004, had occurred a full thirteen
months before this alleged adverse action. Thus, the
thirteen-month period that elapsed between Anderson’s
protected activity and adverse action, without more, does
not create a genuine issue of fact on the inference
of retaliation.
Nor has Anderson presented any evidence that
similarly situated employees were treated differently or
that USPS acted pretextually. Anderson has not
identified other employees who did not file EEO com-
plaints (or engage in similar protected activity) that
received more favorable treatment. Because he has
failed to allege that anyone was similarly situated to
him but treated better, his claim fails. He likewise has not
identified any specific evidence which would indicate
that USPS at any time acted pretextually. Thus, Anderson
has not raised an issue of material fact with which
would permit a reversal of summary judgment under
the “direct approach” to retaliation claims.
For the first time on appeal, Anderson also advances
arguments under the “indirect approach” of proving
causation. Because Anderson did not raise this argument
below, electing instead to proceed exclusively under the
direct method of proof, he has waived this theory of
recovery on appeal. See Hottenroth v. Village of Slinger, 388
F.3d 1015, 1033 (7th Cir. 2004) (“[F]ailure to raise an issue
before the district court results in waiver of that issue
on appeal.” (quoting United States v. Shorty, 159 F.3d 312,
313 (7th Cir. 1998))). We accordingly affirm the grant
No. 11-3784 15
of summary judgment in defendant’s favor with respect
to Anderson’s retaliation claim.
B. Disability Discrimination, Failure to Accommodate,
and FMLA Claims
Anderson’s pro se complaint asserted both disability
discrimination and reasonable accommodation claims,
in addition to his retaliation claim. However, he elected
to omit the disability discrimination and reasonable ac-
commodation claims from his two subsequent amended
complaints, failing to reassert them until his response
to USPS’s summary judgment motion.
Anderson’s second amended complaint represents the
governing document in this case. See Carver v. Condie, 169
F.3d 469, 472 (7th Cir. 1999) (“Once the amended
complaint was filed . . . it became the governing document
in the case and any allegations . . . not brought forward fell
by the wayside.”); see also Wellness Community-Nat’l v.
Wellness House, 70 F.3d 46, 49 (7th Cir. 1995) (it is “well
established that the amended pleading supersedes the
original pleading”). Anderson thus cannot now rely
upon the allegations of disability discrimination and
failure to accommodate contained in his pro se com-
plaint. See Wellness Community-Nat’l, 70 F.3d at 49 (ex-
plaining that the original pleading, once superseded,
cannot be used to cure defects in the amended pleading).
Because Anderson chose to omit the previously asserted
disability discrimination and reasonable accommoda-
tion claims from his second amended complaint, the
governing document in the case, these claims are waived.
16 No. 11-3784
See Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856,
872 (7th Cir. 2012) (citation omitted) (explaining that
waiver applies where a party voluntarily or intentionally
relinquishes a known right).
Nor is it sufficient that Anderson reasserted these
claims in his response to USPS’s motion for summary
judgment; a plaintiff “may not amend his complaint
through arguments in his brief in opposition to a
motion for summary judgment.” Grayson v. O’Neill, 308
F.3d 808, 817 (7th Cir. 2002) (quoting Shanahan v. City
of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)). By then,
USPS, relying on Anderson’s second amended com-
plaint, had not received the fair notice required by the
federal pleading rules. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 545 (2007).
It should be noted that Anderson’s second amended
complaint does mention USPS’s alleged failure to accom-
modate him. However, these references appear under
the heading of, and in furtherance of, Anderson’s single
retaliation claim, serving to identify different required
elements of that claim. First, the complaint states that
Anderson had a right to request accommodation
under the Rehabilitation Act. Viewed in context, this
statement amounts to an allegation that Anderson’s
conduct constituted protected activity, an element of
Anderson’s retaliation claim. Caskey, 535 F.3d at 593.
Similarly, the complaint notes that by failing to accom-
modate Anderson, USPS retaliated against him, causing
him physical, mental, and emotional injury. These al-
legations serve to identify the alleged materially adverse
No. 11-3784 17
employment action undertaken by USPS, another
element of his retaliation claim. Id. We have emphasized
that post-Twombly, a complaint must describe a claim
“in sufficient detail to give the defendant fair notice of
what the claim is and the ground upon which it rests.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)
(citation omitted). Anderson’s references to accommoda-
tion, employed in service of his retaliation claim, did
not provide USPS with fair notice of an independent
reasonable accommodation claim.2
Anderson also asserted violations of the FMLA for
the first time in his response to USPS’s motion for sum-
mary judgment. Anderson waived these claims. See
Abuelyaman v. Ill. State Univ., 667 F.3d 800, 806 (7th Cir.
2011) (upholding the district court’s rejection of a
new theory of discrimination raised for the first time
in opposition to summary judgment); Grayson, 308
F.3d at 817 (finding claims raised for the first time in
opposition to summary judgment waived); Andree v.
2
The district court determined that even if Anderson’s failure
to accommodate claim had been properly pled, it would have
failed on the merits. While we agree that Anderson’s failure
to accommodate claim was not properly pled, we note that the
district court’s consideration of the merits of this issue did
not examine several potentially significant disputes of fact. The
disputes regarding whether USPS ever provided Anderson
with an N95 mask, whether Anderson’s asthma actually
improved in the manual letters department, and whether
Anderson was willing to accept any office job or only one in
the security office present a few such examples.
18 No. 11-3784
Ashland Cnty., 818 F.2d 1306, 1314 n.11 (7th Cir. 1987)
(upholding the district court’s rejection of a theory
raised for the first time in opposition to summary judg-
ment because their “complaint failed to give fair warning
of the theory” to the opposing party).
Anderson argues that his disability discrimination,
failure to accommodate, and FMLA claims deserve con-
sideration because the Federal Rules provide that
leave to amend a complaint should be freely given
“when justice so requires.” Fed. R. Civ. P. 15(a). However,
Anderson did not move to amend his complaint a third
time. Further, Anderson cannot amend his complaint
“through arguments in his brief to a motion for sum-
mary judgment.” Grayson, 308 F.3d at 817. Accordingly,
the district court did not err in rejecting these claims.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in defendants’ favor.
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